“WHAT I CANNOT DO IS HEAR AN APPEAL AGAINST A RECITAL”: WORDING OF ORDER MEANS SLIP RULE HAS TO BE APPLIED
It appears to be a well known fact that family lawyers love recitals. (Not the musical kind – but as the preamble to any and all court orders). This issue caused problems in MA v Roux [2024] EWHC 1917 (Fam) where the decision that the appellant was appealing against was, in fact, put in a recital and therefore could not be appealed.
“… what I cannot do is to hear an appeal against a recital. A recital is simply a record of something that has taken place.”
THE CASE
The appellant appealed a decision of the Circuit Judge that the court did not have jurisdiction to strike out an application to set aside a consent order in financial remedy proceedings. However the judge’s decision on that point was not incorporated into a court order but was a recital. On appeal the court had to consider how it should deal with this issue, it nor being possible to appeal a recital.
THE JUDGMENT ON THIS ISSUE: THE CIRCUIT JUDGE WOULD BE ASKED TO USE THE SLIP RULE
“Upon the court hearing an application on behalf of the respondent for the application to be dismissed pursuant to FPR 4.1.3(m) and PD 9(a) para 13.8 and upon the court refusing the respondent’s application and indicating that reasons would be provided the following day in writing and would be emailed to counsel”.
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- Then there are various orders which make no reference to the refusal of the respondent’s application. It seems to me that this an error of drafting because what I cannot do is to hear an appeal against a recital. A recital is simply a record of something that has taken place. Indeed, the judges of this division deprecate the increasing use of recitals in orders where people seem to want to recite all manner of things these days that really do not need to go into the order.
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- I asked Mr Fairbank what part of the order he was appealing, and he was forced to concede that what he was actually seeking to appeal was this recital which he has no possibility of doing. I am not going to refuse to deal with the matter on that basis. It seems to me that what I must do is invite Her Honour Judge Reardon to agree to an amendment to her order pursuant to the slip rule so that instead of, or perhaps as well as, the recital there is an order saying that the respondent’s application is refused.
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- It seems to me that that would meet the justice of what I am trying to do this afternoon and I think it would be unduly technical of me simply to close my books and say, “I cannot hear an appeal against a recital” and counsel very sensibly and helpfully agreed with me that that is the appropriate thing to do. Whatever the decision is going to be in this appeal, I am going to invite Judge Reardon to do that. If she does not agree then we may have a problem but I am sure that she will.
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- What the judge did was to make her order on that date and then, true to her promise, she supplied reasons very soon thereafter and it helps for me to look at those reasons because that effectively amounts to the Judgment which supports the decision which is under appeal. The Judge gave her reasons the following day, that is 23 August 2023.
- The judge has stated that during the course of the hearing she determined that she did not have the power to strike out or otherwise summarily determine the application. She says that the husband issued his application as a litigant in person in May 2023. That application by the husband was to set aside the consent order, the grounds being, to summarise, that the wife had been guilty of non-disclosure.”